Baroness Chakrabarti: Like other noble Lords, I will focus on the Government’s announcement of a Bill of Rights to restore the balance of power between the legislature and the courts. I declare my interest as a council member of Justice and one of those human rights lawyers for whom various Ministers regularly express open contempt.
I remind your Lordships that the legislature is not synonymous with the Executive, nor with the present incumbent of No. 10, notwithstanding the elective dictatorship analysis in the late Lord Hailsham’s outstanding 1976 lecture, to which my noble and learned friend Lord Falconer of Thoroton referred. Executive domination is not the model of our unwritten constitution, whose overarching principles are supposed to be parliamentary sovereignty and the rule of law. Contrary to Orwellian spin, when the Government abused prerogative power in 2019 quite literally to shut down the legislature, it was to the courts that parliamentarians were forced to turn for redress. This is not the first time that, faced with executive overreach, Parliament and the courts worked together to restore legality.
I commend everything said by the noble and learned Lord, Lord Judge. Although a great deal of legislation contains sweeping executive powers ripe for abuse, now and in future, by accident or design, the so-called Bill of Rights presents the gravest threat of all by removing the ability of people and courts to ensure that powers are exercised compatibly with rights and freedoms and that abusers of state power are properly held to account. In reducing rights protections rather than enhancing them in our nations, instead offering greater impunity to the state, the proposed Bill would achieve the very opposite of any constitutional Bill of Rights. It is not a Bill of Rights in any sense of the English language, and that will be important when considering whether it really fulfils a manifesto commitment.
By contrast, the Human Rights Act was designed by a Labour Government after cross-party consultation to incorporate the European convention rights drafted by Conservative lawyers after World War II. It requires our courts to “take account” of Strasbourg jurisprudence while not being bound by it. This gives them primacy at home, including to disagree with the Court of Human Rights, but also ensures that they remain in constant dialogue with that court and others across the Council of Europe and contribute to rights protections there too.
We are told that this link is to be broken. Under the proposed Bill, our courts will not even have to “take account” of the decisions of the Court of Human Rights—an extraordinary signal to send to the Council of Europe when Russia’s expulsion and Hungary’s violations put that jurisdiction in flux. Yet, in a rather bizarre exercise of executive cake-eating and magical thinking, courts will be allowed to diminish rights expanded in Strasbourg but never “exceed” the protection of these decisions, which they are not required to read.
Just as the Human Rights Act achieves dialogue between domestic and international courts, so it preserves balance between Parliament and judiciary. It requires that all legislation be read compatibly with human rights so far as it is possible to do so. When the language of a statute is just too plainly incompatible, Her Majesty’s senior judges make a declaration to this effect with only moral and persuasive force—that is it. It is suggested that these provisions will be jettisoned, as will duties on public authorities to exercise their powers with respect to human rights obligations, including positive obligations—for example, on the police to protect the public. What on earth will be left as enforcement mechanisms in this so-called Bill of Rights?
If that were not enough, redress could be limited to British nationals demonstrating “significant disadvantage” and “good behaviour”. How many times in history have abuses of power been justified as trivial—such as Rosa Parks being ordered to the back of the bus—or directed at “suspect” people? Think of every Soviet dissident, or Mandela under apartheid. How does this square with past apologies to the Windrush victims or to those of every other miscarriage of administrative or criminal justice?
Noble Lords need no reminding that ECHR compliance is baked into all devolution settlements, which currently and rather precariously hold this kingdom together. This is especially grave in relation to Northern Ireland. The efforts of previous statespeople resulted in the Belfast/Good Friday agreement. This Government’s approach to rights is better epitomised by the Maundy Thursday pact with Rwanda.